Date:         Thu, 25 Jan 2007 17:53:23 -0800
Reply-To:     Robert Fisher <refisher@MCHSI.COM>
Sender:       Vanagon Mailing List <vanagon@gerry.vanagon.com>
From:         Robert Fisher <refisher@MCHSI.COM>
Subject:      Re: Alarm system, was Bus story - using a gun???
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----- Original Message -----
From: "Bob Stevens" <mtbiker62@HOTMAIL.COM>
To: <vanagon@GERRY.VANAGON.COM>
Sent: Thursday, January 25, 2007 4:43 PM
Subject: Re: Alarm system, was Bus story - using a gun???


> "if you feel that your life is in danger"
>
> and I get to decide that but not the legal outcome of my deciding that.
>
> Bob Stevens
> '87 Westy Syncro
> "Passion Fruit"

Essentially. If you're really concerned about this, research your 'local'
laws, and particularly how they are enforced - probably good advice for
anybody, come to think of it, especially those in higher crime areas. Here's
some basic info relating to the 'common law' view of the subject, from a
study guide for what is called the 'baby bar' in California; modern statutes
in most states are often based on some variation of these broad ideas. I'm
not really trying to drag this thread out, but I've had some ... interesting
discussions now and again concerning what people believe they can and cannot
do particularly when it comes to property, so I'm just tossing this out as
food for thought.

Cya,
Robert

I.       Principals of Exculpation


  1.. Justification - The justification defense arise when society has
deemed that although the defendant committed the proscribed act, she should
not be punished because the circumstances justify the action.


TIP - The right to self-defense or other justification defense depends on
the immediacy of the threat; a threat of future harm is not sufficient.
Thus if someone threatens the defendant by saying "Tomorrow I'm going to
kill you," the defendant is not justified in killing the person to "protect"
himself.



TIP - It is crucial to determine the level of force that the defendant used
in committing the proscribed act.  As a rule of thumb, non-deadly force is
justified where it appears necessary to avoid imminent injury or to retain
property; deadly force is justified only to prevent death or serious bodily
injury.

1.     Self-Defense
a.      Non-deadly Force - A person without fault may use such force as
reasonably appears necessary to protect herself from the imminent use of
unlawful force upon herself.  There is no duty to retreat.



b.      Deadly Force - A person may use deadly force in self-defense if (i)
she is without fault; (ii) she is confronted with "unlawful force"; and
(iii) she is threatened with imminent death or great bodily harm.



TIP - If the defendant kills in self-defense but not all three of the
requirements for the use of deadly force are met, some states would find the
defendant guilty of manslaughter rather than murder under the "imperfect
self-defense" doctrine.




    i.            Retreat - Generally there is no duty to retreat before
using deadly force.  The minority view requires retreat before using deadly
force if the victim can safely do so, unless: (i) the attack occurs in the
victim's home, (ii) the attack occurs while the victim is making a lawful
arrest, or (iii) the assailant is in the process of robbing the victim.



c.      Right of Aggressor to Use Self-Defense - If one is the aggressor in
the altercation, she may use force in defense of herself only if (i) she
effectively withdraws from the altercation and communicates to the other her
desire to do so, or (ii) the victim of the initial aggression suddenly
escalates the minor fight into a deadly altercation and the initial
aggressor has no chance to withdraw.



2.      Defense of Others - A defendant has the right to defend other is she
reasonably believes that the person assisted has the legal right to use
force in his own defense.  All that is necessary is the reasonable
appearance of the right to use force.  Generally, there need be no special
relationship between the defendant and the person in whose defense she
acted.



3.      Defense of a Dwelling - Non-deadly force may be used to prevent or
terminate what is reasonably regarded as an unlawful entry into or attack on
the defender's dwelling.  Deadly force may be used only to prevent a violent
entry made with the intent to commit a personal attack on an inhabitant or
to prevent an entry to commit a felony in the dwelling.



TIP - As a practical matter, deadly force usually is justified in repelling
a home invader but the basis for the right to use such force is not to
protect the dwelling, but to protect the safety of the inhabitants of the
dwelling.



4.      Defense of Other Property

a.      Defending Possession - Deadly force may never be used in defense of
property.  Non-Deadly force may be used to defend property in one's
possession from unlawful interference, but may not be used if a request to
desist or refrain from the activity would suffice.



b.      Regaining Possession - Force cannot be used to regain possession of
property wrongfully taken unless the person using force is in immediate
pursuit of the taker.



5.      Crime Prevention - Non-Deadly force may be used to the extent that
it reasonably appears necessary to prevent a felony or serious breach of the
peace.  Deadly force may be used only to terminate or prevent a dangerous
felony involving risk to human life.



6.      Use of Force to Effectuate Arrest - Non-Deadly force may be used by
police officers if it reasonably appears necessary to effectuate an arrest.
Deadly force is reasonable only if it is necessary to prevent a felon's
escape and the felon threatens dead or serious bodily harm.



a.      Private Persons - A private person has a privilege to use non-deadly
force to make an arrest if a crime was in fact committed and the private
person has reasonable grounds to believe the person arrested has in fact
committed the crime.  A private person may use deadly force only if the
person harmed was actually guilty of the offense for which the arrest was
made.



7.      Resisting Arrest - Non-Deadly force may be used to resist an
improper arrest even if a known officer is making that arrest.  Deadly force
may e used, however, only if the person does not know that person arresting
him is a police officer.



8.      Necessity - It is a defense to a crime that the person reasonably
believed that commission of the crime was necessary to avoid an imminent and
greater injury to society than that involved in the crime.  The test is
objective; a good faith belief is not sufficient.



a.      Limitation (Death) - Causing the death of another person to protect
property is never justified..



b.      Limitation (Fault) - The defense of necessity is not available if
the defendant is at fault in creating the situation requiring that he choose
between two evils.



c.      Duress Distinguished - Necessity involves pressure from natural or
physical forces; duress involves a human threat.



9.      Public Policy - A police officer (or one assisting him) is justified
in using reasonable force against another, or in taking property, provided
the officer acts pursuant to a law, court order, or process requiring or
authorizing him to so act.



10. Domestic Authority - The parents of a minor child, or any person "in
loco parentis" with respect to that child, may lawfully use reasonable force
upon the child for the purpose of promoting the child's welfare.